Should Cops Be Protected From Online Mockery?

Perhaps it's fitting that the greater Seattle area would be the home of a fight over cyber-bullying (also referred to as cyber-stalking) in the workplace. Of course, the region is known as a major destination on America's digital map, with giants such as Amazon.com and Microsoft calling it home. But the development of both online operating and commercial systems hardly could have foretold what's ensued in Renton, Wash., a city of about 90,000 that's 10 miles southeast of Seattle.

This past April, a cartoonist who goes by the name "Fiddlesticks" upped the ante, and posted nine more videos on YouTube of a similar nature depicting members of the police as having sex as well as taking part in scenes that reflect an internal knowledge of the goings-on of the Renton force.

Referring to the videos' content as being in the style of the Comedy Central show, "South Park," the Renton City prosecutor has announced an affidavit to obtain a search warrant against the prankster.

And while just two of the nine videos are now available for public consumption after the police action, Renton police chief Kevin Milosevich called attention to their extreme nature during a press conference announcing the affidavit.

"The videos currently posted by a local media outlet are a very mild representation of the entirety of the contents," he said.

At the same press conference, Milosevich was confronted over a possible obstruction of first amendment rights and constitutionally protected free speech, and he made the claim that the videos "met the definition of a crime."

The potential crime in question, cyber-bullying, is defined as such by the state statue: As the Reno reporter notes: Under state law, a person "is guilty of cyber-stalking if he or she, with intent to harass, intimidate, torment or embarrass any other person, makes an electronic communication to such other person or a third party, using any lewd, lascivious, indecent or obscene words, images or language or suggesting the commission of any lewd or lascivious act."

Does the First Amendment protect such speech? There are few areas of the law with such rich legal precedent as free speech, and it's often the first choice of aspiring legal scholars when choosing a specialty.

And while there are many instances of the courts ruling in favor of the speaker, and not the aggrieved seeking to restrict speech, one particularly famous case protected an equally subversive statement meant to question the country's security establishment. In 1971, the Supreme Court ruled in favor of Paul Cohen, in Cohen vs. California, who three years earlier was arrested on a California "disturbing the peace" statute. At the height of the Vietnam War, Cohen had walked into a Los Angeles courthouse with a jacket that bore the phrase, "F*** the Draft." The ruling overturned the statute.

And the legal scholars contacted for this article, as well as those that have commented in the media all foresee a similar outcome for the "cyber-bullying" charge, in the event of a potential challenge.

"The cyber-stalking angle doesn't pass the laugh test," said Venkat Balasubramani, the principal of the Seattle-based firm Focal PLLC that specializes in Internet businesses. "It's a serious stretch and I'd be surprised if somebody looked at it and realistically thought these acts actually fit the statute and we could make somebody criminally liable," he told KIRO-TV, which first reported the Renton matter.

Noted legal commentator, and outspoken opponent of cyber-bullying statutes, Eugene Voloch went further on a post on his blog, The Volokh Conspiracy. Regarding the potential precedent to be established by a prosecution of Fiddelsticks, Volokh had this to say:

"If the prosecutor is right that the statute should be interpreted this broadly, then it's clearly unconstitutionally overbroad. Speech to the public doesn't lose its constitutional protection because it's intended to torment or embarrass. (It may lose such protection when it's intended to be perceived as a true threat of criminal attack, but that's not the issue here.) Nor does [it] lose its constitutional protection because it uses "lewd" or "indecent" terms."

Volokh went on:

"A comedian's joke that "lewd[ly]" or "lascivious[ly]" described President Clinton's behavior with Monica Lewinsky, or for that matter Congressman Weiner's behavior, would be a crime if it was made "with intent to ... embarrass" the President or the Congressman."